Wednesday, February 05, 2014

Nullification: A Valid Second Amendment Strategy

The Wire recently published a story titled “The Revolution Will Not Be Authorized: Give Up on the Nullification Dream, GOP” written by Philip Bump. It is a typical collection of half-truths, smears, name calling and revisionist history trying to paint Georgia nullifiers as right-wing, childish crybabies who can’t handle not having everything their way.

It isn’t very good article, and is filled with legal mischaracterization of the Constitution, and the meaning of judicial review.

It seems Mr. Bump is bothered by the prospects of the state taking affirmative steps to protect the citizens of Georgia from federal violations of the Second Amendment. The bill he is criticizing is House Bill 732 authored by state Rep. Tom Kirby.

Although there are a great deal of silliness I could take issue with in the article, I would like to focus on one in argument in particular.  In the second paragraph we find this little gem :

“States can’t invalidate federal law on a whim, thanks to the very Constitution that people like Kirby often say that they’re defending. North Carolina can’t have a state religion and Louisiana can’t just ignore Obamacare.”
Nowhere in the bill does it say that the enforcement by federal employees of Second Amendment violations is illegal in Georgia. (Although a bill proclaiming this would still be Constitutional inasmuch as the Second Amendment violations are not “in pursuance’ of the U.S. Constitution, and thus the supremacy clause does not make them supreme.) The bill does not seek to block federal action. It merely makes it illegal for state employees to enforce federal Second Amendment violations. This means that the bill is not attempting to push back against the feds in the way that Mr. Bump says. But rather it is relying on the anti-commandeering  doctrine.

That the federal government cannot force states to help implement or enforce and federal act or program is well-established in the law. The anti-commandeering doctrine is based primarily on four SCOTUS cases: Prigg v. Pennsylvania (1842), New York v. US (1992), Printz v. US (1997) and National Federation of Businesses v. Sebelius. The Printz case is the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
In layman’s terms, this legal doctrine simply asserts that the feds cannot force the states to enforce federal laws. Federal law remains intact IF the feds can enforce it. Of course, in the grand scheme of things, this makes a much bigger impact than you might imagine. After all, there are always about five sheriffs deputies or local cops showing up on a raid with the one or two federal agents. If the feds had to make up for the manpower and materials, they would be scarcely able to police an entire state let alone an entire nation of 50 states.

Of course, this law would be a disaster for the gun control agenda in DC.  How hard would it be for the feds to come for guns without the help of all the sheriffs, the state police, the chiefs of police, the city police and other state agents?  It would be a herculean task that very few federal agents would relish.

If Mr. Bump is a gun control supporter, I can understand his desire to divert attention away from nullification or to cast it in a negative light, but he should be ashamed to have mischaracterized this particular bill like he did.


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